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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 727 OF 2017
BETWEEN:
GEORGE TUNA also known as GEORGE TUNA SODIA
Plaintiff
AND:
MICHAEL KANDIU
First Defendant
AND:
MOSBI CITY REALTY LIMITED
Second Defendant
AND:
HENRY WASA AS ACTING REGISTRAR OF TITLES – DEPARTMENT OF LANDS & PHYSICAL PLANNING
Third Defendant
AND:
TIRI WANGA AS ACTING SECRETARY – DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Fourth Defendant
AND:
HON. JUSTINE TKATCHENKO – MINISTER FOR LANDS AND PHYSICAL PLANNING
Fifth Defendant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant
Waigani: Gavara-Nanu J.
2019: 6th December
2021: 30th March
JUDICIAL REVIEW - Land Board - Recommendations - Powers of the Minister - Powers of the Head of State - Duties of the Minister - Powers of the National Executive Council - Land Act, 1996; ss.62, 63, 72 & 99.
JUDICIAL REVIEW - National Court Rules - Order 16 - Application for leave to apply for judicial review under Order 16 r 3 (2) - Notice of Motion - Proper mode to seek substantive judicial review under Order 16 r 5 (1) - Process mandatory - Condition precedent - Jurisdiction of the Court.
JUDICIAL REVIEW - Statement of Agreed and Disputed Facts and Legal Issues - Effect of an agreed fact.
Cases Cited:
Emas Estate Development Pty Ltd v. John Mea [1993] PNGLR 215
Innovest Ltd v. Hon. Patrick Pruaitch & The State (2014) N5949
Koitachi Ltd v. Walter Schnaubelt (2007) SC870
Markham Farming Company Limited v. Tiri Wanga, Secretary, Department of Lands and Physical Planning & Ors (2019) N8103
Martin Maso v Romily Kila Pat (2016) N6550
Philip Isu v. John Ofoi (2014) N5518
The Papua Club Inc. Nusaum Holdings Ltd (No.2) (2004) N2603
Wari v. Ramoi & Dibela [1986] PNGLR 112
Counsel
G. Konjib, for the Plaintiff
P. Mawa, for the First & Second Defendants
R. Uware, for the Third, Fourth, Fifth & Sixth Defendants
30th March, 2021
2. To publish the land in the National Gazette No. G356 on 14 August, 2015, while at the same time allowing him to pay lease rentals.
3. Failure by the Land Board in its meeting No. 2/16, held on 27 April, 2016, to take into consideration issues raised by him regarding the land.
4. The Land Board in its meeting took into consideration irrelevant matters.
6. Failure to act in accordance with the recommended action of the Minister for Lands to uphold his appeal against the Land Board recommendation, which favoured the second defendant, and to grant him lease.
1. A declaration that the decision by the Head of State (HoS) to grant lease to the second defendant in respect of the land was highly irregular.
2. A declaration that there was no notice to show cause issued to him, thus the forfeiture was unlawful and void ab initio.
3. A declaration that the publication of the lease in favour of the second defendant in the National Gazette No. 354 on 5th May, 2017, was highly irregular and unlawful.
4. An order in the nature of certiorari to bring into this Court and quash the decision of the defendants to publish the grant of lease to the second defendant in the National Gazette No. G354 on 5th May, 2017.
5. A declaration that he has equitable interest in the land having lived there for 27 years.
6. Orders in the nature of mandamus to compel the defendants to recall the lease held by the second defendant through the Registrar of Titles and cancel such lease and issue a fresh lease to him.
7. An order that the cost and incidental to this proceeding be paid by the defendant (State) on solicitor/client basis.
3. It is significant to note that the plaintiff has in his notice of motion invoked Order 16 r (3) (2) of the National Court Rules (NRC) to seek leave for the above-mentioned decisions to be reviewed and to seek the above-mentioned substantive relief.
4. The notice of motion was subsequently amended by the amended notice of motion filed on 17th January, 2018.
5. In the amended notice of motion, the plaintiff also invoked s.155 (4) of the Constitution and Order 16 r 3 (8) of the NCR as the jurisdictional basis for the Court to adopt and endorse the purported Consent Orders which were purportedly made on 22 November, 2017. I should at the outset state that, this relief is in my view misconceived and mischievous. Firstly, I note that the purported Consent Orders were not signed by all the parties. Secondly, they were not endorsed by the National Court. These two requirements are fundamental to competent and valid Consent Orders. In the absence of these two factors, the Orders cannot be Consent Orders and therefore cannot bind the parties. The relief sought therefore has no basis.
6. In the amended notice of motion, the plaintiff invoked Order 16 r 3 (2) (a) to seek the same substantive relief which were also sought in the original notice of motion.
7. It is also noted that in the amended notice of motion an alternative relief sought is an order that the Court settle the Statement of Agreed and Disputed Facts and Legal Issues (SADFLI) and issue fresh directions to expedite the proceeding to trial. Plainly this relief is misconceived because the proceeding has already been tried and determined, the events have overtaken this relief.
8. Notably, the plaintiff has abandoned all the above-mentioned relief except for the review of the decision of the Head of State (HoS) to issue a State Lease to the second defendant.
9. The defendants have vigorously defended the application arguing that the proceeding is an abuse of process. They argued that the Minister for Lands acted beyond his powers in recommending to the HoS that the plaintiff’s appeal be upheld and issue title to the plaintiff. They argued that the HoS acted within his powers in refusing the recommendation of the Minister to issue title to the plaintiff. They argued that the HoS exercised his power properly in issuing title to the second defendant and the decision is valid and final and cannot be reviewed.
10. Mr. Mawa of counsel for the first and second defendants argued that the Minister in supporting the appeal by the plaintiff against the decision of the Land Board which favoured the second defendant, had no basis to disregard the advice of the Secretary for Lands which also favoured the grant of title to the second defendant.
11. Mr. Uware, counsel for the third to sixth defendants supported the arguments by Mr. Mawa.
12. It is convenient at this juncture to state that the plaintiff was right in abandoning among others, the relief relating to the forfeiture of his lease because those relief should have been sought by way of an appeal under s.142 (1) (b) and (2) of the Land Act. For the same reason, the payments relating to lease rentals after the forfeiture cannot be raised. The plaintiff tried to claim that his lease should be restored because the defendants have confirmed receiving lease rentals after the forfeiture of his lease. However, s. 122 (5) of the Land Act, prevents the plaintiff from making this claim.
13. The material before the Court also show that the forfeiture of the plaintiff’s lease was proper and lawful because he breached the conditions of his lease. In any case, forfeiture is not an issue before the Court, thus all the issues raised regarding the forfeiture are irrelevant, but even if they were, it would be an abuse of process to raise them because as I noted earlier, they can only be lawfully raised by way of an appeal.
14. This leaves the Court to decide whether the HoS had acted within his powers when dismissing the plaintiff’s appeal and issuing lease to the second defendant.
15. The plaintiff’s lease having been forfeited, the land reverted to being a vacant State land, thus it was proper and lawful for the land to be advertised for the interested persons to apply for it. For the same reason the plaintiff and the defendants had the right to apply for the land. Notably, total of 34 people applied for the land. The Land Board considered all the applications and decided in favour of the second defendant.
16. In considering the plaintiff’s application, the Land Board found that he had no funds to develop the land and had no developmental plans for the land.
17. The Land Board on the other hand found that the first and second defendants had funds and had developmental plans for the land.
18. Appeals against the Land Board decisions are governed and regulated by PART VIII of the Land Act 1996. There are only two sections under this Part, viz; ss. 62 and 63. Section 62 relates to appeals by persons who are aggrieved by the decisions of the Land Board and exercise of power by the HoS regarding those appeals. Section 63 relates to reports or recommendations of the Land Board and the powers the Minister for Lands and the National Executive Council (NEC) may exercise in regard to those reports and recommendations.
19. Under s. 62 (1) an aggrieved person may appeal the decision (recommendation) of the Land Board within 28 days after the notice of the decision or recommendation is given. Such appeal has to be forwarded to the Minister, who would then forward the appeal to the HoS with appropriate advice. Under s. 62 (3) (4) and (5) and s. 63 (3), the HoS is given wide powers. Under s. 62 (3), the HoS has to decide whether the appeal has merit. If the HoS considered that the grounds of appeal were frivolous, he may reject the appeal and order that either the whole of K500 fee deposited by the appellant for the appeal or part of it be forfeited to the State. Under s. 62 (4) the HoS may determine the appeal and his decision is final. Under s. 62 (5), if the appeal was upheld the HoS may, acting on advice refer the matter back to the Land Board for re-hearing.
20. Under s. 63 (1), if no appeal is lodged against the Land Board decision, after the expiration of the appeal period, the decision (recommendation) has to be referred to the Minister for appropriate actions.
21. But where there is an appeal and the HoS has decided the appeal, the matter should then be referred to the Minister to implement the decision.
22. If no appeal is lodged against the decision of the Land Board, the Minister should issue a lease in accordance with the decision of the Land Board, as required under ss. 72 and 99 of the Land Act.
23. If the Minister did not agree with the decision of the Land Board, he should either refer the matter back to the Land Board for re-hearing as required under s. 63 (2) (a) or refer the matter to the NEC as required under s. 63 (2) (b). If the matter is referred to the NEC, the referral should be accompanied by a Business Paper or a Ministerial brief prepared by the Secretary for Lands. The NEC should then refer the matter to the HoS with appropriate advice. This procedure is mandatory. See Martin Maso v. Romily Kila Pat (2016) N6550.
24. It is noted that in this instance, following recommendation by the Land Board in favour of the second defendant, the Secretary for Lands prepared a Business Paper or a Ministerial brief in support of the Land Board decision (recommendation). Ordinarily the Minister should have granted lease to the second defendant under ss. 72 and 99 of the Land Act. But because there was an appeal by the plaintiff and that appeal having been referred to the HoS, the HoS in my view properly dealt with the appeal by rejecting it.
25. The exercise of power by the Minister should be based on the advice given to him by the Departmental Head of the Department of Lands, who has the duty to ensure that the requirements of the Land Act, relating to grant of leases are fully complied with. The Secretary for Lands as the Head of that Department has the duty to advice the Minister on the requirements of the relevant laws including the Land Act, Physical Planning Act, 1989, Land Registration Act, Chapter 191; Land Titles Commission Act, 1962, Valuation Act, Chapter 327, and so on, for proper and valid exercise of power by the Minister.
26. In this case, the Minister acted beyond his powers in supporting the plaintiff’s appeal and recommending the plaintiff to be issued with the lease, thus acting against the Land Board decision and the advice of his Departmental Head. Notwithstanding this flaw in the process, as I said above, since it was an appeal, the HoS did exercise his power properly and lawfully under s. 62 (3) and (4) of the Land Act, to refuse the plaintiff’s appeal by rejecting the recommendation of the Minister to issue lease to the plaintiff. The decision of the HoS can only be reviewed, if it was inconsistent with the requirements of the relevant laws. The plaintiff has the onus to show that the exercise of power by the HoS in this regard was improper and unlawful. See, Wari v. Ramoi & Dibela [1986] PNGLR 112, per Kapi DCJ (as he then was). The plaintiff has failed to discharge that onus.
27. In my view, this application is also flawed in many fundamental respects and must be dismissed. For example, the plaintiff in paragraph 10 of the SADFLI had agreed that the second defendant had an indefeasible title, that is an agreed fact, and is binding on the plaintiff. That to me is the end of the matter because that concession or agreed fact relates the determinative issue of whether the second defendant has a valid and indefeasible title. See Markham Farming Company Ltd v. Wamga (2019) N8103.
28. It is important to remember that the SADFLI narrows down the issues for trial and a concession in a SADFLI such as that in this case has the effect of settling all issues relating to that particular agreed fact. The agreed fact cannot be subsequently raised as an issue at the trial for judicial determination.
29. The nature and the effect of the concession by the plaintiff settled all the issues relating to the validity of the second defendants' title. I discussed this principle in Markham Farming Company Limited v. Tiri Wanga, Secretary for Lands and Physical Planning & Ors (supra), where I said:
"As to the forfeiture, it is not disputed that no notice of forfeiture was served on the plaintiff. In paragraph 6 of the Statement of Agreed and Disputed Facts and Legal Issues (SADFLI), the respondents agreed that the first respondent did not serve the forfeiture notice on the plaintiff. This was a concession by the respondents which is relevant to the primary issue of whether the forfeiture was valid.
Section 122 (4) of the Land Act, requires a forfeiture notice to be served on all persons having an interest in the matter. Thus, it is mandatory that a lease holder
whose lease has been forfeited and as a person directly affected by the forfeiture is served with a copy of the forfeiture notice.
See, PNG Power Ltd v. Edward Make (2018) N7442. In this case, the failure by the respondents to comply with these mandatory statutory requirements renders the forfeiture void ab
initio.
The respondents’ failure to serve a forfeiture notice on the plaintiff also resulted in the plaintiff being denied natural justice. See, Gundale Ltd v. John Ofoi (2017) N6696.
...The concession by the respondents in the SADFLI that the forfeiture notice was not served on the plaintiff is fatal. A concession is akin to an admission in a defence to a statement of claim. The concession is therefore binding on the respondents. The binding effect of a concession made in a SADFLI derives from the terms of the SADFLI which are mutually agreed to by the parties, following Directional Orders given by the Court. Such the concession narrows down the issues for litigation. See, Order 16 r 13 (6) (4) of the National Court Rules. In this instance, the concession also contributed to the effective disposal of the substantive issues. See, also Order 16 r 8 (l) (d) (Schedule A) of the National Court Rules" (emphasis added).
30. In Markham Farming Company Limited, the defendants which included the Registrar of Titles agreed that the plaintiff, which owned the subject property was not served with the notice of forfeiture of its lease, thus breaching the mandatory requirements under s. 122 (4) of the Land Act and the principles of natural justice. I found that the defendants were bound by that concession, therefore they could not raise it as an issue at the trial.
31. In this instance, the plaintiff has also indirectly raised irregularity and fraud in the way the second defendant’s title was issued. But there is no evidence of fraud by the second defendant in acquiring its title. In other words, there is no evidence of actual fraud for me to declare the second defendant’s title invalid. See, Papua Club Inc. v. Nusaum Holdings Ltd (No.2) (2004) N2603 and Koitachi Ltd v. Walter Schnaubelt (2007) SC870. There is also no evidence that the second defendant’s title was issued in breach of the mandatory requirements under the Land Act to render the title being issued irregularly. See, Emas Estate Development Pty Ltd v. John Mea [1993] PNGLR 215. The second defendant’s title was issued through due process.
32. The defendants also argued that this application is incompetent and an abuse of process and the Court has no jurisdiction to grant substantive relief because the plaintiff has invoked wrong Rules to claim them. I accept this argument; this is a fundamental error which goes to the jurisdiction of the Court. The correct Rule for the plaintiff to invoke in seeking substantive relief is Order 16 r 5 (1) of the NCR, which expressly states that the substantive review must be made by a notice of motion. Order 16 r 3 (2) is invoked when seeking leave for judicial review. The difference between Order 16 r (3) (2) and r 5 (1) of the NCR and their respective aims were explained in detail in Innovest Ltd. v. Hon. Patrick Pruaitch & The State (2014) N5949. I have no reason to depart from what I said in that case.
33. Invoking Order 16 r 5 (1) of the NCR to seek a substantive review by way of a notice of motion is mandatory. See, Philip Isu v. John Ofoi (2014) N5518.
34. Whilst the plaintiff purports to have sought the substantive relief by way of a notice of motion, the application is still incompetent and an abuse of process because the notice of motion was filed pursuant to Order 16 r (2) as the jurisdictional basis, instead of Order 16 r 5 (1) of the NCR; which is the correct process for the plaintiff to invoke to seek substantive review.
35. Invoking Order 16 r 5 (1) of the NCR to seek substantive review is a condition precedent to a competent substantive judicial review application. Thus, the failure by the plaintiff to invoke Order 16 r 5 (1) deprives the Court of jurisdiction to review and grant the relief sought.
36. In Philip Isu v. John Ofoi (supra), the Court held that a notice of motion filed under Order 16 r 5 (1) gives jurisdiction to the Court to hear substantive judicial review. The Court said Order 16 r 5 (1) has the same effect as s. 5 notice issued under Claims By and Against the State Act 1996, in a civil claim against the State and a notice under s. 54 of the Motor Vehicles (Third Party Insurance) Act, Chapter No. 295 for an extension of time to lodge a competent claim under that Act, where a claimant failed to lodge a claim within the statutory period. I respectfully concur with these observations as correct statement of the law relating to Order 16 r 5 (1) of the NCR.
37. It follows that the plaintiff having failed to invoke Order 16 r 5 (1) of the NCR to seek substantive judicial review by way of a notice of motion, the application is incompetent and an abuse of process.
38. For the foregoing reasons, the application is dismissed with costs.
Orders accordingly.
_____________________________________________________________
Konjib Lawyers: Lawyers for the Plaintiffs
Mawa Lawyers: Lawyers for the First & Second Defendants
Solicitor-General: Lawyers for the Defendants
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